Matthew T. Mangino: President seeks to amend the Constitution by executive order

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Nov 2, 2018 at 8:53 AMNov 2, 2018 at 8:56 AM

On the eve of the midterm elections, the president has promised to end birthright citizenship embodied in the 14th Amendment to the U.S. Constitution.

The most recent amendment to the U.S. Constitution was ratified in 1992, some 202 years after it was proposed by the first Congress. The president wants to erase a portion of the 14th Amendment with the swipe of a pen.

This country’s last constitutional amendment, the 27th Amendment, also known as the Congressional Compensation Act of 1789, was actually the second of 12 Amendments proposed in 1789. Ten of those proposed Amendments were timely ratified and became the Bill of Rights.

According to the Constitution Center, there was no time period for ratification of a proposed Amendment by the states. After only six states ratified what would become the 27th Amendment, it remained dormant for almost 80 years.

In 1873, Ohio ratified the amendment as an expression of dissatisfaction with attempts by Congress at the time to increase their salaries. The amendment once again lay dormant, but in 1978 Wyoming ratified it, and by 1992, the requisite three-quarters of all states had ratified the Amendment — it was certified as the 27th Amendment.

At issue today is the 14th Amendment, ratified by Congress in 1868 as part of the civil rights amendments after the Civil War. The 14th Amendment provides in part, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

“What (President) Trump is seeking to do is enact a constitutional amendment through executive fiat through the phone and the pen, and you can’t do that,” Matthew Kolken, an immigration lawyer who is an elected member of the American Immigration Lawyers Association’s board of governors told Business Insider. “The process to enact a constitutional amendment is exceptionally difficult and designed that way.”

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.

The only method ever used to amend the Constitution has been Congress proposing an amendment in the form of a joint resolution. Once passed by Congress, a proposed amendment becomes part of the Constitution as soon as it is ratified by 38 of the 50 states.

The president has no constitutional role in the amendment process. In fact, the Congressional resolution does not go to the White House for signature or approval. The lack of any role for the president in amending the Constitution makes Trump’s proposed executive order even more troubling.

The 14th Amendment cannot be changed by executive order, or even by an act of Congress. It requires a constitutional amendment.

In 1995, Walter Dellinger, then the head of the Department of Justice’s Office of Legal Counsel, testified before Congress on the department’s position that any action to limit birthright citizenship would be unconstitutional. He said at the time that birthright citizenship is “fundamental to our liberty as we understand it.” According to Lawfareblog.com, Dellinger noted this week that this position “has never been publicly called into question.”

Unfortunately, the president has no regard for the law or the Constitution. Whether his threat to sign away birthright citizenship is just that — election bluster to motivate his far right base — or he truly intends to take action, he is being, and will continue to be, challenged.

Trump’s cockamamie ideas with regard to immigration have been thwarted. His family separation policy was met with intense opposition from both sides of the aisle and his executive order seeking to restrict immigration and travel to the U.S. was upheld on the third try after federal courts blocked the first two versions.

Even leaders in his own party have rejected the president’s idea out of hand. GOP Speaker of the House Paul Ryan opposes Trump’s plan to issue an executive order. “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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